Douse v. Economical Mutual Insurance Company, 2025 CanLII 20846

Citation: Douse v. Economical Mutual Insurance Company, 2025 ONLAT 22-004449/AABS

Licence Appeal Tribunal File Number: 22-004449/AABS

In the matter of an application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.

Between:

Felecia Douse

Applicant

and

Economical Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Kieffer Norton

APPEARANCES:

For the Applicant: Bianca Pirrotta-Iaccino, Paralegal

For the Respondent: Shannon Ainsley, Counsel

HEARD: By way of written submissions

OVERVIEW

1Felecia Douse, the applicant, was involved in an automobile accident on January 19, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Economical Mutual, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Are the applicant’s injuries predominately minor as defined by the “Schedule” and subject to the treatment limit under the Minor Injury Guideline (“MIG”)?

ii. Is the applicant entitled to $1,995.33 for a psychological assessment as proposed by Alma Rehab inc. in a treatment plan/ OCF-18 (“treatment plan”) dated April 17, 2020?

iii. Is the applicant entitled to $2,829.37 for chiropractic services, as proposed by Alma Rehab inc. in a treatment plan dated June 4, 2020?

iv. Is the applicant entitled to $2,825.37 for chiropractic services, as proposed by Alma Rehab inc. in a treatment plan dated August 1, 2021?

v. Is the applicant entitled to $2,300.00 for chronic pain assessment, as proposed by Ontario Independent Assessment centre Inc., in a treatment plan dated April 21, 2022?

vi. Is the applicant entitled to interest on any overdue payments?

RESULT

3I find that:

i. The applicant’s injuries are predominantly minor and therefore subject to the treatment within $3,500.00 limit of the MIG.

ii. The applicant is not entitled to the treatment plans above.

iii. The applicant is not entitled to interest on any overdue payments.

ANALYSIS

The MIG

4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

5An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

6The applicant submits that she should be removed from the “MIG on the basis of psychological impairments and alludes to the possibility of a chronic pain determination.

Does the applicant suffer from psychological impairment as result of the motor vehicle accident that warrants removal from the MIG?

7I find that the applicant has not demonstrated on a balance of probabilities that she has psychological impairments that warrant removal from the MIG.

8As noted above, an applicant may be removed from the “MIG if they sustain a psychological impairment as a result of the accident, as psychological impairments are not captured within the definition of minor injuries under section 3(1) of the Schedule. In order to be removed from the “MIG” due to psychological impairments, the applicant must show that she has an actual psychological impairment and not just post-accident sequelae. A psychological diagnosis requires the progression of ongoing, post-accident symptomatology, or clinically significant psychological impairments.

9The applicant relies solely on an OCF-18 submitted by psychologist Dr. Marco Chiodo, dated April 17, 2020. The applicant was given a provisional diagnosis of adjustment disorder. The applicant has not submitted any clinical notes and records or an assessment report that would corroborate the diagnosis reported in the OCF-18.

10I find that on its own, an OCF-18 is not sufficient evidence to establish that the applicant has a psychological impairment that warrants removal from the MIG, rather, additional medical evidence is required. Without additional medical evidence, and only a provisional diagnosis in a treatment plan, I find that the applicant has not established that she is suffering from an accident-related psychological impairment. The tribunal would have benefited from clinical notes and records from a treating physician that would demonstrate ongoing accident-related psychological impairments.

11Furthermore, there are no clinical notes and records from the applicant’s physician, Dr. Malhorta, that would demonstrate ongoing accident related psychological impairments.

12Therefore, on a balance of probabilities I find that that the applicant has not incurred a psychological impairment as a result of the accident.

Is the applicant suffering chronic pain as a result of the accident?

13I find that the applicant has not provided me with persuasive evidence to demonstrate that she has suffered physical impairments or chronic pain that warrants removal from the MIG.

14For chronic pain to take someone out of the MIG, there must be an effect on their functionality. The applicant must provide evidence that her accident-related injuries and/or pain have had a detrimental impact on her functionality.

15The applicant submits she is entitled to treatment plans as a result of their physical impairments, warranting removal from the MIG. They provide evidence of chronic pain as per an OCF-3 dated January 23, 2020; Clinical notes and records from Dr. Malhotra dated February 21, 2020, and March 5, 2020; and reports from the physical rehabilitation treatment attended January 2020 to August 2021.

16I find the clinical records of Dr. Malhotra dated February 21, 2020, indicate that the applicant is still in pain one month after the motor vehicle accident.

17I am not compelled that the March 5, 2020, clinical notes of Dr. Malhotra advance the applicants cause as there is no finding that any headaches or pain related to the motor vehicle accident.

18I find the rehabilitation treatment reports of January 2020 to August 2021 provide some clarity into the applicant’s condition during the COVID-19 Pandemic. The applicant submits that their pregnancy and the COVID-19 pandemic impacted their ability to attend at their family physician. While I recognize that the applicant did attend frequently during this time-period, I do not have any submissions regarding any functional impairment as a result of chronic pain that would warrant removal from the MIG.

19The respondent submits that the applicant is not suffering from physical impairments or chronic pain that would warrant removal from the MIG.

20They submit a s.44 report administered by Dr. Loritz on September 20, 2021, in relation to the applicant’s entitlement to a treatment plan dated August 12, 2021.

In this report the applicant reported that they are independent, have no restriction to upper body or neck and demonstrated full range of motion in neck and extremities. Clinical examination was also conducted and did not find any impairments of a physical or psychological nature.

21The applicant’s clinical notes and records appear to support the fact that the applicant is not suffering from any chronic pain. In subsequent follow ups to their family physician, beyond February 21, 2020, the applicant does not raise the issue of any pain as a result of the motor vehicle accident. Nor do they raise any concerns of functional impairment.

22I find that on the balance of probabilities the applicant is not suffering from any functional impairment constituting chronic pain that would support removal from the minor injury guideline

OCF-18s

23As the applicant remains within the MIG and has exhausted the $3,500.00 limit on treatment, she is not entitled to the OCF-18s in dispute.

Interest

24Given that no benefits are overdue, the applicant is not entitled to interest or an award.

ORDER

25I find that:

i. The applicant’s injuries are predominately minor and therefore subject to the treatment within the $3,500.00 limit of the MIG;

ii. The OCF-18s in dispute are not payable; and

iii. The applicant is not entitled to interest.